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> Foreign Intelligence Surveillance Court, which concluded that “where one individual does not have a Fourth Amendment interest, grouping together a large numbe

> Foreign Intelligence Surveillance Court, which concluded that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.” This is a very shitty ruling that denies basic mathematical fact: a graph of nodes contains data that simply isn't present in a lone node. Edit: The difference actually springs from a qualitative difference in the search. In the case of a lone person, the government is seeking information about that person in a vacuum; in the case of hoovering up millions of records, they're explicitly looking for interconnections, which is different in kind than if they were looking at each record in isolation, and just happened to have millions. The FISC court is essentially misrepresenting the nature of the bulk search by pretending it's merely many copies of an individual search, rather than a different type of search, altogether.

devx 13y ago
Why is this court even allowed to make such ruling anymore? Take the case straight to the Supreme Court. FISC is a joke that needs to be immediately disbanded.
- CamperBob2 13y ago
  Yeah, it's not as if the FISA court judges are all appointed by John Roberts himself. Anyone who isn't outraged by this is not only not paying attention, they're just a plain old moron.
  - interstitial 13y ago
    Watch the comments on Ars, they won't be all that outraged. Something funny is going on over there. They are learning to love Statism and its philosophies.
  - tedunangst 13y ago
    That Roberts, what a jerk. It's not enough for him to rule over one court, he has to go around picking the people in charge of other courts, too. What gives him the right?
  - Shivetya 13y ago
    based on Robert's own writings, I do not think he would be terribly upset if they would put the power of appointments back to the Presidency. I for one would like it because it would force the Administration to accept some responsibility for the courts, something it can easily distance itself from now. They currently get all the benefits without the repercussions, going to be hard to make them accept both
- rayiner 13y ago
  You don't want this to go to the Supreme Court yet. You won't like he outcome. This needs to wait until there is at least an articulable alternate framework for pro-privacy folks to point to. When you're inventing rights out of thin air, as any "right to privacy" justices would be doing, you need more to hang your hat on.
  - bediger4000 13y ago
    Do we want this to go to any Supreme Court that includes Justices Scalia and Thomas? Neither appears equipped to handle this kind of problem.
    - aclevernickname 13y ago
      Go read Thomas' dissent in Raich V. Gonzales[1], and tell me whether or not your opinion has changed afterwards. [1] http://www.law.cornell.edu/supct/html/03-1454.ZD1.html http://www.law.cornell.edu/supct/html/03-1454.ZD1.html
      - bediger4000 13y ago
        No change. That particular case just happens to hit his "states rights" stance, and since it's a dissent, he can make the dissent without changing how the decision actually goes. Also, he appears to be a bit schizo on the drug issue: http://www.ontheissues.org/Clarence_Thomas.htm http://www.ontheissues.org/Clarence_Thomas.htm But it appears that the appearance of conflict of interest (http://www.thenation.com/article/155499/clarence-thomass-ethics-problems-then-and-now http://www.thenation.com/article/155499/clarence-thomass-eth...) is still with him: http://www.motherjones.com/politics/2013/07/ginni-thomas-groundswell-conflict-interest http://www.motherjones.com/politics/2013/07/ginni-thomas-gro...
  - drjesusphd 13y ago
    > an articulable alternate framework for pro-privacy folks to point to "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
deleted 13y ago
[deleted]
neilk 13y ago
Yeah, I read the "Opposition" too, looking for what Ars was talking about - I assume that is the section that prompted their headline. http://cdn.arstechnica.net/wp-content/uploads/2013/10/Opposition.pdf http://cdn.arstechnica.net/wp-content/uploads/2013/10/Opposi... But, is this argument flawed in a legal sense? What other legal principle says that obtaining the business records (i.e. phone records, web browsing history) of one person is different from millions of people? I have an intuitive sense that (a) it's bad because it makes a mockery of limited government (b) just as deepening a search into one person requires more justification (probable cause, etc), widening a search ought to require similar special justification.
- DerpDerpDerp 13y ago
  My point is much more narrow: that the collection of millions of records to make a graph of relationships, to scan for patterns in the graph is fundamentally a different kind of search from obtaining the records of activity a lone person to specifically look in to their actions. My edit elaborated on this: the mass record gathering is not fundamentally millions of lone investigations happening in parallel, but a fundamentally different kind of investigation; they're collecting the edges of the graph, not merely many nodes instead of a single node. The court failed to rule on the relevant question, through what seems like ignorance of the underlying mathematics/information theory involved in the situation. Essentially, the government ruled on "What if you collect all the nodes for the graph, instead of just one node?" rather than "What is the proper manner (if any) to collect the edge information of the graph?" It's not obvious that the government has an authority to gather those relationships (the connections between specific nodes) in bulk, and that it is a different kind of search, fundamentally, from looking at a specific node (or many of them in parallel). What the information is going to be used for is relevant to the question of their obtaining it. In that sense, their ruling is bad because it's not even answering the right question.
  - neilk 13y ago
    I hear you - of course it is different, but what legal principle can we call upon to make this count in the court? (I'm not a lawyer, so the following analogy may be way off.) Look at it this way. In the USA, people have a right to individual liberty. A cop can ask you to step out of the way while she performs her duties. That's a tiny breach of your liberty, weighed against the benefits of the cop performing her job of protecting the public. But you can't extend that principle to mean a cop can ask a million people to move across town, because a million times a small injury is a big injury. The government here is arguing that the injury of looking over one person's business records is zero. And arguably, in their terms, it is. The subject doesn't even know it happened. As long as the government treats the individual records with appropriate care, they would say there's no harm. And a million times zero, in their calculation, is still zero. What you're trying to say is that of course a million people's phone records is totally different from one. It gives the government a kind of power over the entire population they did not have before. But it seems we can't get there by multiplying the harms to one person. So what is the principle that we use?
rayiner 13y ago
The FISC ruling ignores that fact because its simply not relevant to a 4th amendment analysis. The fourth amendment is rooted in an expectation of privacy. If one person can't reasonably expect the police not to drive by and look at what's on his lawn, a 4th amendment issue doesn't suddenly arise just because they canvas the whole block. The amount of information yielded by a search is simply not one of the elements of the 4th amendment. Maybe it should be, but it isn't, and the FISC isn't entitled to just add that to the analysis out of thin air.
- DerpDerpDerp 13y ago
  It's entirely relevant if the expectation of privacy includes the information extracted, but not the underlying individual pieces, but that's somewhat tangential to why I think it's problematic. > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment doesn't expressly mention privacy, but it does talk about the specificity of the search - and I'd argue that using instruments meant for the collection of lone records to gather entire sets of social information synthesized from those records likely violates both the specificity (they're fishing, not being targeted) and may violate the reasonable requirement. It's also a possible violation of the First Amendment, as it has an inherently chilling effect on the right to free association if the government is constructing a database of all your interactions with people, for the purpose of later deciding what you did wrong.
  - rayiner 13y ago
    There are two steps to the analysis: 1) Is there a reasonable expectation of privacy? This expectation refers to the situation, not the information extracted. 2) If there is a reasonable expectation of privacy, a warrant requiring specific descriptions of what is to be searched is required. You're right that collecting lots of peoples' information creates a specificity problem in situations where a warrant is required, but if there is no reasonable expectation of privacy to begin with, that prong doesn't even enter into the analysis.
bsullivan01 13y ago
IANAL, but could one make a case that our freedom of association is being violated by the Feds knowing every person we talk to, text, meet (location data) etc?
- schoen 13y ago
  EFF's new lawsuit against NSA argues that the freedom of association is violated by this surveillance. https://www.eff.org/cases/first-unitarian-church-los-angeles-v-nsa https://www.eff.org/cases/first-unitarian-church-los-angeles...
pfortuny 13y ago
Conspiration to kill the president. A single person cannot conspire, so that EX NIHILO a possible crime appears needing at least two people. Each of them alone may noy have a fourth ammendment interest BY HIMSELF (it is difficult to accuse someone of conspiration without a partner...) . A conspiarcy takes two to exist. It is not so easy as they state it. And it is because... people are mostly relations, not monads. It is not ex nihilo, it is ex essentia personae why the mutual interest may appear. Edit: Imagine: we are searching your house looking for evidence of conspiracy. But you are the only suspect...WTF?
- pyre 13y ago
  > Imagine: we are searching your house looking for evidence of conspiracy. But you are the only suspect...WTF? Isn't it possible that they suspect that you have partners, but don't know who they are?

devx 13y ago

Why is this court even allowed to make such ruling anymore? Take the case straight to the Supreme Court. FISC is a joke that needs to be immediately disbanded.

CamperBob2 13y ago
Yeah, it's not as if the FISA court judges are all appointed by John Roberts himself. Anyone who isn't outraged by this is not only not paying attention, they're just a plain old moron.
- interstitial 13y ago
  Watch the comments on Ars, they won't be all that outraged. Something funny is going on over there. They are learning to love Statism and its philosophies.
- tedunangst 13y ago
  That Roberts, what a jerk. It's not enough for him to rule over one court, he has to go around picking the people in charge of other courts, too. What gives him the right?
- Shivetya 13y ago
  based on Robert's own writings, I do not think he would be terribly upset if they would put the power of appointments back to the Presidency. I for one would like it because it would force the Administration to accept some responsibility for the courts, something it can easily distance itself from now. They currently get all the benefits without the repercussions, going to be hard to make them accept both
rayiner 13y ago
You don't want this to go to the Supreme Court yet. You won't like he outcome. This needs to wait until there is at least an articulable alternate framework for pro-privacy folks to point to. When you're inventing rights out of thin air, as any "right to privacy" justices would be doing, you need more to hang your hat on.
- bediger4000 13y ago
  Do we want this to go to any Supreme Court that includes Justices Scalia and Thomas? Neither appears equipped to handle this kind of problem.
  - aclevernickname 13y ago
    Go read Thomas' dissent in Raich V. Gonzales[1], and tell me whether or not your opinion has changed afterwards. [1] http://www.law.cornell.edu/supct/html/03-1454.ZD1.html http://www.law.cornell.edu/supct/html/03-1454.ZD1.html
    - bediger4000 13y ago
      No change. That particular case just happens to hit his "states rights" stance, and since it's a dissent, he can make the dissent without changing how the decision actually goes. Also, he appears to be a bit schizo on the drug issue: http://www.ontheissues.org/Clarence_Thomas.htm http://www.ontheissues.org/Clarence_Thomas.htm But it appears that the appearance of conflict of interest (http://www.thenation.com/article/155499/clarence-thomass-ethics-problems-then-and-now http://www.thenation.com/article/155499/clarence-thomass-eth...) is still with him: http://www.motherjones.com/politics/2013/07/ginni-thomas-groundswell-conflict-interest http://www.motherjones.com/politics/2013/07/ginni-thomas-gro...
- drjesusphd 13y ago
  > an articulable alternate framework for pro-privacy folks to point to "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

deleted 13y ago

[deleted]

neilk 13y ago

Yeah, I read the "Opposition" too, looking for what Ars was talking about - I assume that is the section that prompted their headline. http://cdn.arstechnica.net/wp-content/uploads/2013/10/Opposition.pdf http://cdn.arstechnica.net/wp-content/uploads/2013/10/Opposi... But, is this argument flawed in a legal sense? What other legal principle says that obtaining the business records (i.e. phone records, web browsing history) of one person is different from millions of people? I have an intuitive sense that (a) it's bad because it makes a mockery of limited government (b) just as deepening a search into one person requires more justification (probable cause, etc), widening a search ought to require similar special justification.

DerpDerpDerp 13y ago
My point is much more narrow: that the collection of millions of records to make a graph of relationships, to scan for patterns in the graph is fundamentally a different kind of search from obtaining the records of activity a lone person to specifically look in to their actions. My edit elaborated on this: the mass record gathering is not fundamentally millions of lone investigations happening in parallel, but a fundamentally different kind of investigation; they're collecting the edges of the graph, not merely many nodes instead of a single node. The court failed to rule on the relevant question, through what seems like ignorance of the underlying mathematics/information theory involved in the situation. Essentially, the government ruled on "What if you collect all the nodes for the graph, instead of just one node?" rather than "What is the proper manner (if any) to collect the edge information of the graph?" It's not obvious that the government has an authority to gather those relationships (the connections between specific nodes) in bulk, and that it is a different kind of search, fundamentally, from looking at a specific node (or many of them in parallel). What the information is going to be used for is relevant to the question of their obtaining it. In that sense, their ruling is bad because it's not even answering the right question.
- neilk 13y ago
  I hear you - of course it is different, but what legal principle can we call upon to make this count in the court? (I'm not a lawyer, so the following analogy may be way off.) Look at it this way. In the USA, people have a right to individual liberty. A cop can ask you to step out of the way while she performs her duties. That's a tiny breach of your liberty, weighed against the benefits of the cop performing her job of protecting the public. But you can't extend that principle to mean a cop can ask a million people to move across town, because a million times a small injury is a big injury. The government here is arguing that the injury of looking over one person's business records is zero. And arguably, in their terms, it is. The subject doesn't even know it happened. As long as the government treats the individual records with appropriate care, they would say there's no harm. And a million times zero, in their calculation, is still zero. What you're trying to say is that of course a million people's phone records is totally different from one. It gives the government a kind of power over the entire population they did not have before. But it seems we can't get there by multiplying the harms to one person. So what is the principle that we use?

rayiner 13y ago

The FISC ruling ignores that fact because its simply not relevant to a 4th amendment analysis. The fourth amendment is rooted in an expectation of privacy. If one person can't reasonably expect the police not to drive by and look at what's on his lawn, a 4th amendment issue doesn't suddenly arise just because they canvas the whole block. The amount of information yielded by a search is simply not one of the elements of the 4th amendment. Maybe it should be, but it isn't, and the FISC isn't entitled to just add that to the analysis out of thin air.

DerpDerpDerp 13y ago
It's entirely relevant if the expectation of privacy includes the information extracted, but not the underlying individual pieces, but that's somewhat tangential to why I think it's problematic. > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment doesn't expressly mention privacy, but it does talk about the specificity of the search - and I'd argue that using instruments meant for the collection of lone records to gather entire sets of social information synthesized from those records likely violates both the specificity (they're fishing, not being targeted) and may violate the reasonable requirement. It's also a possible violation of the First Amendment, as it has an inherently chilling effect on the right to free association if the government is constructing a database of all your interactions with people, for the purpose of later deciding what you did wrong.
- rayiner 13y ago
  There are two steps to the analysis: 1) Is there a reasonable expectation of privacy? This expectation refers to the situation, not the information extracted. 2) If there is a reasonable expectation of privacy, a warrant requiring specific descriptions of what is to be searched is required. You're right that collecting lots of peoples' information creates a specificity problem in situations where a warrant is required, but if there is no reasonable expectation of privacy to begin with, that prong doesn't even enter into the analysis.

bsullivan01 13y ago

IANAL, but could one make a case that our freedom of association is being violated by the Feds knowing every person we talk to, text, meet (location data) etc?

schoen 13y ago
EFF's new lawsuit against NSA argues that the freedom of association is violated by this surveillance. https://www.eff.org/cases/first-unitarian-church-los-angeles-v-nsa https://www.eff.org/cases/first-unitarian-church-los-angeles...

pfortuny 13y ago

Conspiration to kill the president. A single person cannot conspire, so that EX NIHILO a possible crime appears needing at least two people. Each of them alone may noy have a fourth ammendment interest BY HIMSELF (it is difficult to accuse someone of conspiration without a partner...) . A conspiarcy takes two to exist. It is not so easy as they state it. And it is because... people are mostly relations, not monads. It is not ex nihilo, it is ex essentia personae why the mutual interest may appear. Edit: Imagine: we are searching your house looking for evidence of conspiracy. But you are the only suspect...WTF?

pyre 13y ago
> Imagine: we are searching your house looking for evidence of conspiracy. But you are the only suspect...WTF? Isn't it possible that they suspect that you have partners, but don't know who they are?